Federal judge closes books on Florida gay marriage ban

By DARA KAM
THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE, March 31, 2016.......... More than a year after same-sex marriages began in Florida, a federal judge on Thursday issued a final judgment declaring that Florida's voter-approved prohibition against gay marriage is unconstitutional.

In a harshly worded ruling, U.S. District Judge Robert Hinkle rejected state officials' arguments that a final order in the Florida case was unnecessary due to a seminal U.S. Supreme Court decision last year that struck down state bans on same-sex marriages nationwide.

Hinkle chastised state officials for their reluctance in acknowledging that the Florida ban had been overturned and "for a history of resistance" in a variety of areas linked to gay marriage --- including in the state's handling of birth certificates for children of same-sex couples.

Jim Brenner and his partner Chuck Jones, a Tallahassee couple who have been together for nearly three decades and were married in Canada, filed the initial lawsuit against the state challenging the gay marriage prohibition. Brenner and Jones later asked Stephen Schlairat and Ozzie Russ, a gay Washington County couple, to join the lawsuit. The American Civil Liberties Union also filed a challenge on behalf of eight couples and other plaintiffs, and the cases were consolidated.

In August 2014, Hinkle ruled that Florida's ban on gay marriage was unconstitutional, but he put his decision on hold until January 2015. At that point, same-sex marriages began in the state. Cementing Hinkle's decision, the U.S. Supreme Court, in a case known as Obergefell v. Hodges, ruled in June 2015 that same-sex couples have a fundamental fight to marry.

After the Supreme Court's decision in the Obergefell case, "one might have expected immediate, unequivocal acceptance," Hinkle wrote in a 10-page order Thursday.

"Not so for the state of Florida," he wrote, outlining Florida officials' reluctance to move forward to do away with the ban.

Months after the Supreme Court ruling, two female couples and an advocacy group sued the state to require the Department of Health to list both spouses on birth certificates of children born into same-sex marriages --- as the department typically does when married parents are a man and a woman. Health officials contend they cannot list both same-sex parents because state law requires the names of the "mother" and the "father" to be listed on the documents.

Hinkle appeared to settle the question of the state's obligation to issue birth certificates to children of same-sex couples using both spouses' names.

"…The answer should be easy," the judge wrote. "The statutory reference to 'husband' cannot prevent equal treatment of a same-sex spouse. So, for example, in circumstances in which the surgeon general lists on a birth certificate an opposite-sex spouse who is not a biological parent, the surgeon general must list a same-sex spouse who is not a biological parent."

Florida lawmakers also drew Hinkle's wrath for refusing to address the birth certificate issue or to repeal a state law banning gay marriage during the legislative session that ended earlier this month.

"Here the Florida Legislature has refused to budge; the challenged statutes remain on the books. That result is fully consistent with the defendants' approach to this case all along. There has been nothing voluntary about the defendants' change of tack," Hinkle wrote Thursday.

Attorney General Pam Bondi's office argued that the case was effectively moot because of the Obergefell decision.

"There is no need for anything further from this court,'' Bondi's office argued in an August 2015 document. "The United States Supreme Court has held that states must recognize same-sex marriage, and state officials will comply with the Supreme Court's decision."

But Hinkle wrote that a case only becomes moot “if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur."

"Given the state defendants' history of resistance to earlier orders, the breadth of state employment and vital-records requirements, and the state defendants' insistence that state provisions remain in force until explicitly struck down, it cannot be said that the state defendants have unambiguously terminated their illegal practices. That the Legislature chose not to pass legislation to bring Florida law into compliance does not help the defendants," Hinkle wrote.

For Brenner, Hinkle's order Thursday was the end of a nearly four-year odyssey.

"This sets it in concrete for Florida," regardless of future court decisions elsewhere on the issue, Brenner said in a telephone interview. "It is done. Finally."

Hinkle's summary judgment order "makes clear what the Constitution requires so that state officials and employees can comply with the law, which is always a very positive thing, for officials and the government to be following the government's rules," Bill Sheppard, a Jacksonville civil-rights lawyer who represents the Brenner plaintiffs, said in a separate interview.

Asked whether the judge's decision finally closes the books on the gay marriage issue in Florida, Sheppard paused.

"As one of my favorite judges used to say, only time will tell," he said.

Hinkle's ruling Thursday also set the stage for the judge to decide on attorney's fees in the case. Sheppard, his wife and law partner Elizabeth White and Jacksonville attorney Sam Jacobson asked Hinkle to approve fees of $450 to $500 an hour for their work, as well as lower hourly fees for other lawyers and a law clerk who worked on the case, totaling $455,171.30. The lawyers spent more than 800 hours on the case, according to a document filed last year.